Cholamandalam M.S. General Insurance Company Limited v. Rajesh Kumar, Joseph, The New India Assurance Company Limited, Aprily Francis and others (MACA Nos. 579/2011, 691/2011, 695/2011, 696/2011 & 936/2011) against the award in OP(MV) No. 451/2005, Motor Accidents Claims Tribunal, Thodupuzha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 16TH DAY OF DECEMBER 2013/25TH AGRAHAYANA, 1935** ## **MACA.No. 579 of 2011 (D)** **-----------------------------------[AGAINST THE AWARD DATED 31-12-2010 IN O.P.(M.V).NO. 451/2005 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA] ............** ## **APPELLANT/4TH RESPONDENT:** **-----------------------------------------------** **CHOLAMANDALAM M.S. GENERAL INSURANCE COMPANY LIMITED, CHENNAI, NOW REPRESENTED BY ITS MANAGER-CLAIMS, ACEL ESTATE, CHITTOOR ROAD, KOCHI-11.** **BY SRI.MATHEWS JACOB, SENIOR ADVOCATE, ADV. SRI.P.JACOB MATHEW.** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 3:** **-----------------------------------------------------------------------------------** **1. RAJESH KUMAR, S/O. SUDHARSANAN, KUZHIKKALAYIL HOUSE, CHEMBAAKAPPARA BHAGAM, THANKAMONY KARA, THANKAMONY VILLAGE - 685 602.** **2. JOSEPH, S/O. MATHEW @ KUNJUMON, THECKAYI HOUSE, KAMAKSHY.P.O., THANKAMONY VILLAGE - 685 515.** **3. THE NEW INDIA ASSURANCE COMPANY LIMITED, REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM - 686 039.** **4. APRILY FRANCIS, MANAMPARAMBIL HOUSE, THANKAMONY.P.O., IDUKKI - 685 602.** **R1 BY ADV. SRI.C.M.TOMY, R2 BY ADV. SRI.JOHNSON P.JOHN, R3 BY ADV. SRI.LAL GEORGE, R4 BY ADV. SRI.MATHEW SKARIA.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-11-2013, ALONG WITH M.A.C.A.NO.691/2011 AND CONNECTED CASES, THE COURT ON 16-12-2013 DELIVERED THE FOLLOWING:** **Prv.** ## **S.SIRI JAGAN & K. RAMAKRISHNAN, JJ.** ............................................................................ M.A.C.A.NOS.579,691,695,696 & 936 OF 2011 ........................................................................... Dated this the 16[th] day of December, 2013. ## **JUDGMENT** ## **Ramakrishnan, J.** MACA.Nos.579/2011, 696/2011 and 936/2011 are filed by the insurance company, claimant and the third respondentowner of the vehicle respectively in OP(MV)No.451/2005 on the files of the Motor Accidents Claims Tribunal, Thodupuzha. MACA.No.691/2011 is filed by the claimant/owner of the motor cycle in OP(MV)No.189/2006 of the same Tribunal. MACA.No.695/2011 is filed by the claimants, who are the legal heirs of one Jins, the rider of the motor cycle involved in the accident in O.P.(MV)No.450/2005 on the files of the same court. Since these appeals are filed against a common award of the Tribunal, we are also disposing of these appeals by a common judgment. 2. OP(MV)No.451/2005 was filed by the injured in an accident, while he was travelling as a pillion rider in the motor cycle driven by Jins, for the injures and consequential disabilities suffered by him in that accident, alleging that the MACA.No.579/11 & Con.Cases 2 accident occurred due to the negligent driving of the jeep owned and driven by the first respondent and insured with the second respondent insurance company. The motor cycle in which the deceased Jins was travelling as the rider and the claimant in OP(MV)No.451/2005 was travelling as a pillion rider, was owned by the third respondent and insured with the 4[th] respondent in OP(MV)No.451/2005. OP(MV)No.450/2005 was filed by the legal heirs of deceased Jins claiming compensation for his death while OP(MV)No.189/2006 was filed by the owner of the motor cycle claiming compensation for the damage caused to his vehicle. Two other petitions were also filed for compensation by other injured persons and all the cases were jointly tried by the Tribunal. After considering the evidence on record, the Tribunal found that the accident occurred solely due to the negligence of the rider of the motor cycle viz late Jins and dismissed the claim petitions filed by the claimants in OP(MV)Nos.189/2006 and 450/2005 allowing OP (MV)No.451/2005 against owner and insurer of the motor cycle alone and awarding a compensation of Rs.1,61,500/- on various heads as follows: |MACA.No.579/11 & Con.Cases|3|| |---|---|---| |Loss of earning||Rs.9,000| |Transportation expenses||Rs.7,500| |Extra nourishment||Rs.3,000| |Bystander expenses||Rs.3,000| |Damage to clothing etc||Rs.500| |Medical expenses||Rs.13,500| |Loss of amenities||Rs.8,000| |Pain and suffering||Rs.20,000| |Disability||Rs.97,000| |||------------------| |Total||Rs.1,61,500| |||= =======| 3. The Tribunal directed the 4[th] respondent in that case, who is the insurer of the motor cycle involved in the accident to pay the amount with right of recovery of the amount from the third respondent - owner of the vehicle. Aggrieved by the dismissal of the claim petition, the claimants in OP(MV) No.450/2005 filed MACA.No.695/2011 and the claimant in OP (MV)No.189/2006 filed MACA.No.691/2011 and aggrieved by the finding on negligence and amount awarded, the insurer of the motor cycle, the 4[th] respondent in OP(MV)No.451/2005 filed MACA.No.579/2011, and owner/3[rd] respondent in the case filed MACA.No.936/2011. The claimant in OP(MV)No.451/2005 filed MACA.No. 696/2011 challenging the finding on negligence and MACA.No.579/11 & Con.Cases 4 also the quantum of compensation awarded, seeking enhancement. 4. Heard counsel for the appellants in all these cases, counsel for the respective insurance companies and the owner of the motor cycle involved in the accident. For convenience, we shall refer to the parties as described in OP(MV)No.451/2005 before the Tribunal, as all the necessary parties were impleaded in that case. 5. The counsel for the claimant in OP(MV)No.451/2005 submitted that in fact the accident occurred due to the negligent driving of the jeep by its driver and police has charge sheeted him in respect of the accident. Further, the place of occurrence and the positions of the vehicle as noted in the scene mahazar will go to show that the accident occurred due to the negligence of the driver of the jeep and not the rider of the motor cycle. He also contended that the amounts awarded are also less as the monthly income fixed is not proper. The disability has not been properly appreciated. The counsel for the appellants in MACAs.579/2011 and 936/2011 and 691/2011 and 695/2011 also submitted that the accident occurred due to the negligent driving of the jeep by its driver and that the MACA.No.579/11 & Con.Cases 5 Tribunal was not justified in fastening the entire negligence on the rider of the motor cycle alone. So, according to them, the Tribunal ought to have found that the accident occurred due to the negligence of the driver of the jeep alone and there was no negligence on the part of the rider of the motor cycle. 6. On the other hand, the counsel for the insurance company of the jeep in all these cases submitted that on the basis of the scene mahazar, the Tribunal was perfectly justified in coming to the conclusion that the accident occurred due to the negligent driving of the motor cyclist as it came to the extreme wrong side and hit against the jeep. So, according to him, the Tribunal was perfectly justified in arriving at such a conclusion which does not call for any interference at the hands of this Court. 7. We have considered the rival contentions of all the parties in detail. 8. The case of the claimants in all these cases was that the deceased Jins was riding the motor cycle in which the claimant in OP(MV) 451/2005 was travelling as a pillion rider and when it reached the place of occurrence, the jeep owned and driven by the first respondent in OP(MV)No.451/2005 MACA.No.579/11 & Con.Cases 6 and insured with the second respondent in that case, came from the opposite direction in a negligent manner and hit against the motor cycle. It is an admitted fact that Ext.A1 First Information Report was registered against the jeep driver as Crime No.472/2004 of Kattappana police station. The case was registered on the basis of the statement given by the claimant in OP(MV)No.451/2005. It is also an admitted fact that after investigation, the police had submitted final report against the driver of the jeep for rash and negligent driving in respect of the incident as evidenced by Ext.A3 certified copy of the final report filed in that case. Ext.A4 is the scene mahazar prepared by the police in respect of this incident. The place of occurrence in the scene mahazar was located as 2.16 metres south from the northern tar end and the road was having a total width of 4.17 meters. It is also an admitted fact that the motor cycle driven by deceased Jins with the claimant in OP(MV)No.451/2005 as a pillion rider was proceeding from east to west and the offending jeep came from the opposite direction. So it can be seen from the scene mahazer that the place of occurrence was slightly on the wrong side of the motor cyclist. But that alone is not sufficient MACA.No.579/11 & Con.Cases 7 to come to the conclusion that he was solely responsible for the accident. It is seen from Ext.A4 scene mahazer that the location of the vehicles after the accident was described as follows: µãÄc¢ èÌAßW ÈßKᢠ1 ÎàxV 58 cm Èí æÄAá µßÝAá ÎÞùß ¿ß ÍÞ·¢ çùÞÁßæa µßÝAí ÎáX ÎÞV¼ßÈßW µÞøcJßÈí çÙÄáÕÞÏ KL-61894 ÈOV ¼àMí ÎùßEáµß¿Ká µÞÃáKá. So it is clear from the position of the vehicles that the jeep was also driven at a high speed and even after the hit, it proceeded further and capsized on the eastern side of the road. So it is clear from this that the jeep driver was also driving the jeep at a high speed and he had also contributed to the accident. 9. It cannot be said that the motor cycle had gone to the extreme wrong side and hit against the jeep. The accident occurred almost on the middle of the road. There is nothing on record to show that the driver of the jeep had exercised due diligence on his part to avoid the accident. Merely because in the scene mahazar it was mentioned that the place of occurrence is slightly on the wrong side of the motor cyclist, that alone is not sufficient to come to the conclusion that the MACA.No.579/11 & Con.Cases 8 rider of the motor cyclist alone was negligent. It is a settled law that heavier the vehicle, the responsibility is more. After investigation, the investigating officer had submitted final report against the driver of the jeep. In the absence of any evidence, the Tribunal has to take this as a prima facie evidence regarding negligence. The court can also rely on the scene mahazer which was prepared by the investigating officer for the purpose of locating the place of occurrence and arrive at a just conclusion regarding the negligence of the driver of the vehicle, who is responsible for the accident. It is also seen from the records that the rider of the motor cycle was not having any valid driving licence to drive the vehicle. Even the claimants, the legal representatives of the deceased driver in OP(MV)No.450/2005, had not produced the driving licence of the deceased. The insurer of the motor cycle as well as the insurer of the jeep had a case that he had no driving licence, and attributed the same as a cause of the accident. Further Ext.B2 survey report submitted by the owner of the motor cycle also shows that the driving licence particulars of the rider, namely, Jins Chacko was not produced for verification. So that will have to be taken into consideration for the purpose MACA.No.579/11 & Con.Cases 9 of assessing negligence on the part of the rider of the motor cycle as well. The fact that the vehicle had gone slightly to the wrong side and hit against the jeep will give an indication that the rider of the motor cycle was not proficient in driving and that resulted in the accident as well. 10. Further the claimant in OP(MV)No.451/2005 was examined in this case. He had categorically stated that the jeep came on the wrong side and hit against the motor cycle in which he was travelling as a pillion rider driven by Jins. According to him, the accident occurred on the eastern side of the road. But he denied the suggestion that Jins was not having driving licence and drove the vehicle at a high speed and hit against the jeep on the middle of the road. It is true that except the interested testimony of PW2, no further evidence was adduced on his part regarding the question of negligence. So considering the over all circumstances of the case, the finding of the Tribunal that the accident occurred solely due to the negligent driving of the motor cycle by late Jins appears to be not correct. The Tribunal has not applied the principle that heavier the vehicle, the responsibility is more and also did not consider the question as to whether anything MACA.No.579/11 & Con.Cases 10 was done by the driver of the jeep to avert the accident on seeing the motor cyclist coming through the middle of the road. So, all these things go to show that the driver of the jeep also contributed to the accident by his negligence. 11. It cannot be said that merely because the police has charge sheeted the driver of the jeep, alone the same is not sufficient to come to the conclusion in this case that there was no negligence on the part of the motor cyclist, on the basis of the evidence available on record. So under the circumstances, the Tribunal ought to have found that the accident occurred due to the negligent driving of the motor cycle by its rider and also the jeep by its driver and should have apportioned the negligence between them. Considering the fact that the accident occurred slightly on the wrong side of the motor cyclist and the motor cyclist was not having driving licence to drive the cycle, it can be presumed that he had contributed more to the accident. So under the circumstances, the finding of the Tribunal that the accident occurred due to the negligence of the rider of the motor cycle alone is set aside and we hold that the accident occurred due to the negligent driving of the motor cycle by late Jins and MACA.No.579/11 & Con.Cases 11 the driver of the jeep apportioning the negligence between them in the ratio 70:30. 12. We shall now consider the quantum of compensation payable to the claimants in OP(MV)Nos.451/2005,450/2005 and 189/2006 separately. ## 13. **OP(MV)No.451/2005 (MACA.No.696/2011):** The case of the claimant in this case was that he was working as a salesman under PW3 and getting Rs.3,000/- per month. He relied on Ext.A18 salary certificate to prove the fact that he was working as a salesman in Malabar Catering and Decorations. Ext.A18 was proved through PW3 and the Tribunal has accepted that amount as his income as well. It is seen from the records that he suffered comminuted fracture shaft of right femur, abrasion right big toe, circumferential laceration over right thumb with fracture of proximal phalanx. The discharge summary shows that he had suffered comminuted fracture of right femur and type II open fracture of Pl right thumb. He was treated as in-patient from 27.12.2004 to 17.1.2005 (wrongly shown as 17.1.2008 in the award) at Medical College Hospital, Kottayam. It is seen from the discharge summary that fracture of femur was treated with K MACA.No.579/11 & Con.Cases 12 nail and fracture of thumb was treated with external fixator. Ext.A13 treatment certificate shows that he suffered comminuted fracture of shaft of right femur and open fracture of proximal phalanx of right thumb and that was treated with open K nailing and plating right femur and external fixation of right thumb. K nail and plating were removed on 23.2.2007. The Tribunal has awarded three months' salary as compensation under the head loss of earnings during the period of treatment. It is seen from the records that he was under treatment for a long time. So considering these aspects, the Tribunal was not justified in taking only three months as the period of treatment and we take it as five months awarded Rs.15,000/under the head loss of earnings during the period of treatment, instead of Rs.9,000/- awarded by the Tribunal. 14. It is seen from the records that he suffered 20% disability, which is evident from Ext.A19 disability certificate issued by the Medical Board of Taluk Headquarters Hospital, Thodupuzha. It is mentioned in the disability certificate that he is having mild limping on right leg, that walking is painful and that he can walk only with support. It is also mentioned in the certificate that there is laxity of meta carpo phalangeal MACA.No.579/11 & Con.Cases 13 joint of proximal thumb and hence writing is difficult and painful. The claimant was also present in court. The Tribunal noted that he is having mark of surgery along the right side of right thigh, has slight limping on right side and there is mark of surgery on the base of right thumb because of which he complains of pain while writing. So considering this aspect, the Tribunal had fixed his occupational disability as 15% which we feel is just and proper, considering his nature of employment. The Tribunal has applied the right multiplier of 18 as he was aged only 23 years at the time of accident and awarded Rs.97,000/- under the head loss of earning capacity which appears to be just and proper. We do not find any reason to interfere with the same. 15. But at the same time, the Tribunal has awarded only Rs.20,000/- under the head 'pain and suffering', which appears to be on the lower side and we enhance the same to Rs.25,000/-. The Tribunal has awarded only Rs.8,000/- under loss of amenities in life. He had suffered 20% permanent disability and the Tribunal has taken 15% for assessing occupational disability. The nature of disabilities mentioned in the disability certificate will go to show that it will have MACA.No.579/11 & Con.Cases 14 great impact on his personal life and will affect his enjoyment in life as well. He was aged only 23 years at the time of accident. So considering these aspects, the amount of Rs.8,000/awarded by the Tribunal under loss of amenities in life appears to be on the lower side and we enhance the same to Rs.30,000/- from Rs.8,000/-. Though persuasive arguments were made on the side of the counsel for the claimant in this case to get enhancement on all other heads, we are not impressed by the same as we feel that the amount awarded by the Tribunal under other heads appears to be just and proper. In all, the appellant in MACA.No.696/2011 who is the claimant in OP(MV)No.451/2005 is entitled to get an additional compensation of Rs.33,000/- over and above what has been awarded by the Tribunal, which respondents 2 and 4 are liable to pay in the ratio 30:70. Since the rider of the motor cycle was not having driving licence to drive the vehicle, the owner of the vehicle namely the third respondent in OP(MV) No.451/2005 had entrusted the vehicle to a person who is not having valid driving licence and thereby he had committed a willful violation of the policy condition, the 4[th] respondent in MACA.No.696/2011 and the appellant in MACA.No.579/2011 is MACA.No.579/11 & Con.Cases 15 entitled to recover the amount paid by them so as to indemnify the insured from the owner of the motor cycle, namely the third respondent in MACA.No.696/2011 and the appellant in MACA.No.936/2011 under Section 149(4) of the Motor Vehicles Act. ## **16. M.A.C.A.No.695/2011 (OP(MV)No.450/2005:** This appeal was filed by the legal heirs of Jins and the claimants in O.P.(MV).No.450/2005. The claimants are the parents and the siblings of late Jins. The case of the appellants was that deceased Jins was working as the Manager in Malabar Catering and Decorations for a salary of Rs.4,500/- per month and the employer had issued Ext.A7 salary certificate to that effect. But no proper registers were produced to prove this payment. The employer (PW3) had also stated that there is no registration with the labour office and had stated that the Muster Rolls and the wage registers are not available in the office. So, Ext.A7 cannot be accepted as such for considering the income or occupation of the deceased. However, considering the fact that he was aged only 25 years at the time of the accident and the accident occurred in the year 2005 and considering his future prospects, we fix his notional income as MACA.No.579/11 & Con.Cases 16 Rs.3,000/- per month taking into account future prospects also. 17. Except the parents, the others are majors and they cannot be deemed to be the dependants of the deceased. He having been a bachelor, as per **Sarla Verma v. Delhi Transport Corporation** (2010(2) KLT 802 SC), half of his income has to be deducted of his personal expenses. In view of the decision reported in **Amrit Bhanu Shali v. National Insurance Co. Ltd** (2012 ACJ 2002) followed by us in **Annamkutty v. United India Insurance Co.Ltd** (2013 (4) KLT 160), the age of the deceased has to be reckoned for adopting the multiplier and not the age of the dependants. If a recalculation is made on these outputs, the appellants will be entitled to get an amount of Rs.3,24,000/- (3000x12x18x1/2) under the head 'loss of dependency' and we award this amount under this head. The appellants are entitled to get Rs.10,000/under the head 'compensation for pain and suffering' of the deceased, Rs.10,000/- under the head 'funeral expenses', Rs.3,000/- under the head 'transport to hospital', Rs.20,000/under the head 'loss of love and affection' and Rs.10,000/under the head 'loss of estate'. In all, the appellants are entitled MACA.No.579/11 & Con.Cases 17 to get a total compensation of Rs.2,15,000/-. Since this court found that the deceased has contributed to the accident to the extent of 70%, the claimants are entitled to get only 30% of the total as compensation, namely Rs.64,500/- which, the second respondent insurance company in this appeal is liable to pay with 9% interest from the date of petition till the payment. Two months' time is granted to the insurance company to deposit this amount. ## **18. M.A.C.A.No.691/2011 (OP(MV)No.189/2006):** The claimant in OP(MV)No.189/2006 is the appellant herein. He filed the application for compensation for the damage caused to his motor cycle involved in the accident. He had produced Ext.A24 the copy of the registration certificate of the vehicle and Ext.A25 the copy of the policy to prove that he is the owner of the vehicle. Ext.A26 series are the photographs with negatives to prove the damage caused to the motor cycle. Ext.A27 series are the bills produced by him to prove the expenses incurred by him for repairing the motor cycle. Ext.B2 was produced by the insurer of the motor cycle as the survey report submitted by the appellant showing the estimate for repairing the vehicle. The Surveyor has estimated MACA.No.579/11 & Con.Cases 18 Rs.8,411.45 as the expenses for repairing the vehicle and deducting depreciation, assessed the damage caused to the vehicle as Rs.6,921.71. Ext.A27 series shows that he has spent Rs.13,503/-, but he has not adduced any evidence to prove that all these bills were incurred for the purpose of repairing the vehicle. So under the circumstances, Ext.A27 series as such cannot be taken into consideration for assessing the compensation for the damage caused to the vehicle. But Ext.B2 being a survey report prepared by an authorised valuer of the insurance company, that can be taken into consideration for the purpose of proving the damage caused to the vehicle and compensation payable for the same. So, the appellant is entitled to get an amount of Rs.6,921.71 as compensation. But, since it is found that the rider of the motor cycle has contributed 70% to the accident, the appellant is entitled to get only 30% of the amount as compensation namely Rs.2,077/- and we award this amount in favour of the appellant as compensation, which the second respondent in that appeal is liable to pay with 9% interest from the date of petition till the payment. Two months' time is granted to the insurance company to deposit this amount. MACA.No.579/11 & Con.Cases 19 19. In the result, the above appeals are allowed in part. The finding of the Tribunal that the accident occurred due to the negligent driving of the motor cycle by its rider alone is set aside and we hold that the accident occurred due to the negligence of both the rider of the motor cycle and the driver of the jeep in the ratio 70:30. The appellant in M.A.C.A No.696/2011 is entitled to get an additional compensation of Rs.33,000/- over and above what has been awarded by the Tribunal, which respondents 2 and 4 in that appeal are liable to pay in the ratio 30:70 with 9% interest from the date of petition till the payment and the 4[th] respondent is entitled to recover the entire portion of the amount paid by them from the third respondent, owner of the vehicle. The second respondent is directed to pay 30% of the original compensation amount fixed by the Tribunal as well with interest at the rate allowed by the Tribunal. The claimant in MACA.No.691/2011 is entitled to get an amount of Rs.2,077/- payable by the second respondent in that case together with 9% interest from the date of petition till the payment. The appellants in MACA.No.695/2011 are entitled to get Rs.64,500/- payable by the second respondent insurance company in that appeal MACA.No.579/11 & Con.Cases 20 together with 9% interest from the date of petition till the payment. The amount so awarded shall be payable to appellants 1 and 2 alone as they are the only dependants of the deceased. With the above modification of the impugned awards of the Tribunal, these appeals are disposed of. Sd/- **S.SIRI JAGAN, JUDGE.** Sd/- **K. RAMAKRISHNAN, JUDGE.** cl